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29
Court of Criminal Appeal 12 May 2004

R v. GIRARD, Andrew John, R. v. GIRARD, Tessa Maree

[2004] NSWCCA 170

Drugs
CRIMINAL LAW APPEAL SENTENCE WHETHER MANIFESTLY EXCESSIVE RELEVANCE OF FAMILY CIRCUMSTANCES RELEVANCE OF GOOD CHARACTER.

Citation: R v Girard, Andrew John; R v Girard, Tessa Maree [2004] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 12 May 2004
Judges: Hodgson JA, Levine J, Howie J

Background

The two appellants, a husband and wife, pleaded guilty in the District Court at Moree to supplying cannabis over a period of approximately five weeks. They were described in the agreed facts as heavily involved in large-scale cannabis supply in the Moree area, having supplied approximately eight kilograms of cannabis with a street value of around $68,000. Police executing a search warrant at their home found a further two pounds of cannabis and nearly $5,000 in cash.

The sentencing judge characterised the offending as a well-organised, ongoing joint criminal enterprise in which both offenders were equally involved. Each was sentenced to three years' imprisonment with a non-parole period of eighteen months.

Both appellants sought leave to appeal their sentences in the Court of Criminal Appeal, arguing the sentences were manifestly excessive and that insufficient weight had been given to subjective factors. The wife raised an additional ground, contending her sentence should have been reduced further to reflect her good character and blameless prior record.

  • Whether the sentences of three years' imprisonment were manifestly excessive, having regard to sentencing statistics and the objective seriousness of the offending
  • Whether the sentencing judge gave sufficient weight to subjective factors, including the impact of both parents' imprisonment on three young children
  • Whether the family circumstances of the children constituted "truly exceptional" circumstances warranting a substantial reduction in sentence
  • Whether the wife's lack of any prior criminal record required the sentencing judge to impose a materially lesser sentence than that imposed on her husband

Decision

The Court dismissed both appeals, granting leave but finding no error in the primary judge's sentencing approach. On the question of manifest excess, Hodgson JA concluded that sentencing statistics did not demonstrate the starting point of four years (before the 25 per cent guilty plea discount) was inappropriate. The offending was ongoing, well-organised, and commercially motivated, which justified a more serious view of the conduct.

On the impact of imprisonment on the three children (aged twelve, seven, and four), the Court accepted that harm to innocent children is a relevant subjective circumstance to be weighed in the overall sentencing mix. However, it held that such circumstances did not here rise to the level of "truly exceptional" as required by R v Edwards to warrant a specific, discrete, and substantial reduction in sentence beyond general subjective considerations. The sentencing judge had acknowledged the children's situation and the risk of irreversible harm to children whose parents are imprisoned, but the Court interpreted those remarks as speaking to children generally rather than identifying a particular exceptional circumstance applying to these children.

On the distinction between the two appellants based on good character, the Court found no error in the sentencing judge treating the husband's prior record as insignificant and declining to draw a meaningful distinction between the two sentences. Hodgson JA observed that considerations of good character carry less weight in the context of an ongoing, well-organised commercial enterprise than in a single isolated incident.

Orders Made

  • Leave to appeal granted
  • Appeals dismissed

Key Takeaways

  • Family circumstances, specifically the impact of parental imprisonment on children, are a relevant subjective factor in sentencing, but they must amount to "truly exceptional" circumstances before they can justify a specific and substantial reduction in sentence beyond the general sentencing calculus.
  • In dismissing both appeals, the Court confirmed that taking family circumstances into account "as part of the general mix of subjective matters" is categorically different from treating them as a standalone basis for discrete leniency.
  • Where offending is characterised as a well-organised, ongoing commercial enterprise, good character carries reduced mitigating weight compared with cases involving isolated incidents.
  • No error was established in the primary judge's approach to equally sentencing co-offenders where the evidence supported a finding of equal participation, even where one had a minor prior record and the other had none.
  • The Court of Criminal Appeal will not intervene in a sentence simply because sentencing statistics suggest a lower range, where the particular facts of the offending justify a higher starting point.

Legislation and Cases Referenced

Legislation:
- Drugs, Misuse and Trafficking Act 1988 (NSW), ss 25, 32(1)(h)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e) and (f)

Cases:
- R v Edwards (1996) 98 A Crim R 510 (exceptional family circumstances in sentencing)
- R v X [2004] NSWCCA 93 (family circumstances and sentencing leniency)